This copy is for your personal non-commercial use only. To order presentation-ready copies of Toronto Star content for distribution to colleagues, clients or customers, or inquire about permissions/licensing, please go to: www.TorontoStarReprints.com

The legal team representing the Toronto police officer convicted of attempted murder in the death of Sammy Yatim says there is new evidence “capable of tipping the scales” on the case’s controversial outcome — and argues it should be heard at a new trial.

Documents filed at the Ontario Court of Appeal provide greater detail about the so-called “fresh evidence” lawyers for Const. James Forcillo argue should be heard in court — research they say sheds new light on the phenomenon of “critical incident stress.”

That proposed evidence — a recent study examining Toronto police officers’ response in dangerous situations — advances the “scientific understanding of the stress response in the law enforcement context,” according to written arguments prepared by Michael Lacy, Joseph Wilkinson and Bryan Badali.

The issue is of critical relevance to the suspended officer’s defence on the all-important “second volley” of bullets — the six shots Forcillo fired while Yatim was on the floor of the streetcar, already shot by three of Forcillo’s bullets.

Forcillo testified that he’d had an honest belief that Yatim was re-arming himself and getting up — a claim plainly disproven by the video evidence of the shooting. But officer’s lawyers now say there is research backing up how and why the officer’s “distorted” perception of Yatim’s movements may have been altered by a stress response.

“Had the jury had the benefit of the evidence, the jury would have been more likely to accept that (Forcillo) honestly was mistaken about (Yatim)’s movement prior to the second volley . . . ”

In turn, they may have concluded he lacked the intent to kill necessary to convict him, believing he was acting in an “instinctive, impulsive or unthinking manner due to the stress response.”

Crown lawyers, meanwhile, say Forcillo’s lawyers are attempting to “revisit an issue that was addressed at trial.”

“Neither at trial nor now on appeal has anyone offered the opinion that stress can cause a person to misperceive in the way (Forcillo’s lawyer) described, that is, to hallucinate that someone has raised their body up to a 45-degree angle off the floor,” Crown lawyers Howard Leibovich, Susan Reid and Michael Perlin write in a lengthy recent response.

Forcillo, 34, was found not guilty of second-degree murder in the July 2013 shooting death of Yatim, 18, on a Toronto streetcar. But the jury convicted the officer of attempted murder — a confusing outcome made available by the Crown’s decision to separate Forcillo’s nine shots into two distinct volleys.

Toronto police had been called to the Dundas West streetcar to investigate a young man armed with a knife and exposing himself. Once Forcillo arrived on scene, Yatim was alone on the streetcar, passengers having run off in a panic.

In an exchange that took place in less than a minute, Forcillo arrived on scene and shot Yatim three times as he stood at the door of the streetcar, unleashing what experts later determined was the fatal shot to Yatim’s heart. Less than six seconds later, as Yatim lay on the floor of the streetcar, Forcillo shot at him six more times, striking him five times.

It was the second volley the jury found constituted attempted murder, and that trial judge Justice Edward Then called an “egregious breach of trust.”

Forcillo has appealed various aspects of the case and its outcome, including the six-year sentence handed down by Then. At the Court of Appeal last fall, his lawyers argued the shots fired by Forcillowere part of one consecutive event and should never have been split into two volleys.

In a second phase of Forcillo’s appeal — so far argued only in written submissions — his lawyers are arguing they be allowed the rare ability to present new evidence to Ontario’s highest court.

It’s uncommon for evidence not introduced at trial to be heard at an appeal hearing; lawyers must prove it pertains to an issue central to the case and that the evidence was not available when the trial was held.

Forcillo’s lawyers have argued the new evidence provides reliable research to back up their claim that Forcillo had been experiencing “stress-caused perceptual distortions” at the time he began firing the second volley, causing him to misperceive that Yatim was rising up.

The new research stems from a study by Judith Andersen, a health psychologist who studies the physical and mental health impact of stressful and traumatic experiences. She conducted a study on a small group of officers from Toronto police’s Emergency Task Force.

The research involved evaluating the officers’ cortisol and cardiovascular levels in various stressful scenarios, both in training and on the road. The tests came back with what Forcillo’s lawyers say is “objective biological measurements” indicating that — despite being highly trained — the officers’ stress arousal lasted for an average of five minutes and as long as 10 minutes.

James Forcillo is shown in this file photo. (MARK BLINCH/The Canadian Press file photo)

According to Forcillo’s lawyers, one of the most important aspects of the study casts doubt on the testimony of now-retired Toronto deputy chief Mike Federico, a Crown witness who at trial stated the service provided training that inoculates officers against the effects of stress.

Forcillo’s lawyers say the study shows the inoculation techniques used by Toronto police “do little to counteract” the effects of a natural stress response that then go on to affect the perceptions and reactions “of even highly trained” officers.

Crown lawyers argue the study adds “nothing of substance” to the evidence heard at trial. They write that the research cannot be expected to affect the result from trial and, conducted in 2014, is “far from fresh;” Forcillo’s lawyers say the research was unknown at the time of the trial.

While Forcillo’s lawyers are arguing that the new evidence establishes it is more likely that the officer was experiencing “perceptual distortions” when he shot Yatim, Crown lawyers say the study did not examine whether there were such distortions caused by stress.

Mere evidence that officers have a physical response to stress does not “meaningfully advance the defence.”

“The evidence is inadmissible, and the fresh-evidence application should be dismissed,” the Crown lawyers write.

There are so far no court dates scheduled for oral arguments on the new evidence issue.

Late last year, Forcillo was charged with breaching his bail conditions after he was found at another apartment, that of his fiancée, when he should have been at home. A few weeks later he was charged with perjury and attempting to obstruct justice.

His bail has since been revoked and he is in prison serving his six-year sentence while awaiting the results of the appeal.

The Toronto Star and thestar.com, each property of Toronto Star Newspapers Limited, One Yonge Street, 4th Floor, Toronto, ON, M5E 1E6. You can unsubscribe at any time. Please contact us or see our privacy policy for more information.

More from the Toronto Star & Partners

LOADING

Copyright owned or licensed by Toronto Star Newspapers Limited. All rights reserved. Republication or distribution of this content is expressly prohibited without the prior written consent of Toronto Star Newspapers Limited and/or its licensors. To order copies of Toronto Star articles, please go to: www.TorontoStarReprints.com